Creativity and Copyright in the Data Age

In our previous posts we have detailed how The Second Digital Disruption is transforming many content industries. In particular, it is changing the way content is organized, invested in, and even produced, not merely how it is distributed to the world (which is what the first digital disruption upended).

The evolution of data-driven authorship also raises many interesting questions about the theory and doctrine of intellectual property. In our final post, we offer a brief excerpt from the paper in which we speculate about how the moral intuitions that undergird copyright may shift if—as we believe—this phenomenon grows in importance:

“The traditional account of authorship—and the account that underlies copyright law—is Promethean: that is, the creator is viewed as bringing something from the heavens to man, as Prometheus brought fire, and, again like Prometheus, is envisioned as a lone genius and benefactor of humankind.

This Promethean account underlies the central feature that has characterized copyright systems since the first modern copyright statute, the British Statute of Anne of 1710. Copyright is a system of authors’ rights. According to this account, copyright is not for publishers, or sponsors, or (at least primarily) readers. The law’s focus is the author, and the author is the holder (at least initially) of the rights that the law creates.

The advent of data-driven authorship is likely to undermine the Promethean allegory. What may rise in its place—or at least alongside it—is something we’ll call the “Panoptian” model of creativity. The label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera. And this gets to the heart of how data-driven authorship is likely to change popular impressions of the nature of creativity, and, as a consequence, popular intuitions about the moral standing of creators to claim property rights in their work.

In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth. Instead, they are unsleeping watchers. They are accessories to a system of surveillance—one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless